August 23, 2012

So, Ofcom has overturned yet another of ATVOD’s decisions. In January 2011, ATVOD had determined that Sky was ‘editorially responsible’ for its Sky Anytime service because Sky could choose which programmes to show on the service and therefore had ‘final say’ over what was shown to viewers and must notify (and, of course, pay) ATVOD. Sky did not agree, and appealed the determination to Ofcom. Sky said that because MTV, Nickelodeon and Comedy Central make and/or provide the programmes and Sky merely controls the presentation of the on-demand content, it is the channel providers and not Sky who have editorial responsibility for the service. In particular, Sky pointed out that because the contract between the parties said that Sky cannot ‘add to, delete, alter or otherwise change any of the programmes or other content’, Sky could not possibly be editorially responsible for it. on appeal, rather than substituting ATVOD’s decision with its own, Ofcom instructed ATVOD to make the decision again. This, says Ofcom, is because since it made the determination, two appeals on the same point have been determined by Ofcom and they now provide the appropriate guidance. The guidance, in short, is that where commercial arrangements lead to ambiguity around editorial responsibly, the wording of the contract can and should be analysed to resolve any such ambiguity, unless there are compelling indications to the contrary. So, with a pretty strong steer from Ofcom, the ball is back in ATVOD’s court to have another go. However, whilst it might be easy to be critical of ATVOD and Ofcom with respect to the time it is taking to give the industry clarity, to be fair to both ATVOD and Ofcom, they are struggling with some pretty poor legislation. The relevant section of the Communications Act (s.368A(4)), which is based on the AVMS Directive, states that for a person to have “editorial responsibility” over an on-demand service, that person has to have general control over what programmes are included in the range of programmes offered to users andover the manner in which the programmes are organised in that range.   As the industry knows full well, these two functions are often not held by the same person: normally a producer/broadcaster has general control over what programmes are to be included within an on-demand service and the on-demand operator has general control over the manner in which those programmes are organised. In Ofcom’s latest determination, it says: “d            there might be more than one person having a role in determining the range of programmes offered in a service and their organisation within that range; but…. f.              there may be circumstances where it is necessary to decide which of the persons in [(d)] has editorial responsibility (any ambiguity as to who it is must be resolved), which may require a determination of whether the person with control of the content of individual programmes or a (different) person with control over distribution has editorial responsibility”. A pragmatic approach, perhaps, but not one that sits very happily with the underlying legislation: the definition of editorial responsibility does not permit an “either….or…” test – it requires a person to have general control over both functions for that person to have editorial responsibility. Good luck, ATVOD…… For more information, contact David Deakin, Consultant or Orlando Wells, Trainee Solicitor